REGIONAL TRANSPORT OFFICER VADAKARA Vs. K V ABDURAHIMAM

JUDGEMENT

(1.) Whether the owner/person in possession or control of a vehicle, which has been seized and detained for non-payment of tax under the Kerala Motor Vehicles Taxation Act, 1976 (hereinafter referred to as the Act), is entitled, to claim exemption from payment of tax under Section 5 and in cases where tax has already been paid, to claim refund under Section 6 of the Act, of the tax paid by him for the period during which the vehicle was under detention", are the issues which come up for decision in these three cases which have been referred to a Full Bench by a Division Bench, since the Division Bench perceived an apparent conflict between decisions of two Division Benches in W.A. Nos. 82 of 1986 and 1429 of 2002 on the one hand and the decision of another Division Bench in W.A. No. 1861 of 2004 on the other.

(2.) The question that arose for consideration in W.A. No. 1861/2004 referred to in the reference order was as to whether in respect of a vehicle under police custody for non-payment of tax under the Act, a claim for exemption from payment of tax under Section 5 of the Act would lie on the ground of non-use of the vehicle. In that case the question of entitlement for refund under Section 6 of the Act did not come up for consideration either directly or indirectly. The Division Bench, in that appeal held that the person liable to pay tux on the vehicle in police custody for non-payment of tax under the Act is not entitled to claim exemption from tax either under Section 5 or under Clause 27 of the SRO No. 878/75 issued under Section 22 of the Act.

(3.) In W.A. Nos. 82/86 and 1429/02 also the main issue which came up for consideration was the same viz. whether a claim for exemption from payment of tax under Section 5 of the Act would lie in respect of a vehicle in police custody for non-payment; of tax under the Act. In those cases also the answer given by the respective Division Bench to that question was the same, i.e. in the negative. But in those decisions the Division Benches took that view for want of appropriate notice, in accordance with the statutory provision, regarding non-use of the vehicle with effect from the date of seizure. In fact the Division Bench which heard W.A. No. 1429/02 only followed the dictum in W.A. No. 82/86. But in both cases the Division Benches went on further to hold that despite such ineligibility to claim exemption under Section 5 of the Act for want of non-compliance with statutory formalities, it would be open to the party to claim refund of the tax after payment by invoking Section 6 of the Act.